Bills About ‘Divisive Concepts’ at Colleges Are on the Rise

Tennessee is poised to become the next state to enact a law controlling how “divisive concepts” are addressed on college campuses. This bill was passed recently and could become law within the next few weeks. Over the last year, Republican lawmakers across the country have largely focused on the K-12 level when introducing such laws—but, as the Tennessee legislation demonstrates, proponents of “divisive concept” restrictions now have their sights set on higher education.

According to PEN America (an organization which advocates freedom of expression), only 26% were directed towards higher education institutions last year. Only three states have passed such bills. However, this year 46% have been focused on higher education. A PEN America tracker shows that at least 43 of these bills aimed at higher educational were being considered in 21 US states. Opponents say the targeting of colleges and universities highlights what’s at stake with such laws.

The Tennessee bill, supported by Republican lawmakers, does not specifically restrict in-class speech by professors, but would prohibit students or employees at public colleges from being disciplined for refusing to support “one or more divisive concepts” and would allow them to sue public colleges and universities if they feel they have been unfairly punished. It would also prohibit universities from requiring training for students or employees that includes “divisive concepts.”

The bill identifies 16 divisive concepts, including the idea that Tennessee or the U.S. are “fundamentally or irredeemably racist or sexist,” and the idea that “an individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist, or oppressive, whether consciously or subconsciously.” The bill also requires that any university employee whose role is focused on promoting diversity must also work on strengthening intellectual diversity on campus.

Both the Tennessee House and Senate passed this bill and it will now go to Governor. Bill Lee, a Republican from Tennessee who also signed an identical law restricting K-12 public school teachers’ ability to talk about racism or bias in the classroom last year.

A spokesperson for Lee said the bill has not been transmitted to the Governor’s desk yet, after passing in the Tennessee House on Monday. “We will review the final legislation in detail,” Casey Black, Lee’s press secretary, said in an email.

The bill’s supporters claim it is designed to prevent students being punished for their opinions, but Democrats and others who oppose the measure warn it could silence professors, create legal issues for universities, and lead to conflict over vague definitions of what counts as “divisive.”

“Classes will be canceled. The professors’ names will be removed from the web. It will also censor course materials. It’s going to create a very unwelcoming environment,” says Jeremy Young, who has advocated against such legislation as senior manager of free expression and education at PEN America. “It’s just going to get worse.”

Young views this new legislation as part a larger trend that is tied to declining trust and institutions of higher education. Pew Research Center’s 2019 survey found that nearly 60% of Republicans think higher education has negative effects on America.

“This is all part of a bigger context of more significant attacks on higher ed from the political realm,” Young says. “There is a sense that it’s increasingly a political winner to attack.”

House Bill 1012 is a similar piece of legislation that was passed in South Dakota. It prohibits colleges from requiring trainings or orientations based on “divisive concepts” and from requiring students to agree with or adhere to those concepts.

“No student or teacher should have to endorse Critical Race Theory in order to attend, graduate from, or teach at our public universities,” Gov. Kristi Noem was a Republican who made the following statement. “College should remain a place where freedom of thought and expression are encouraged, not stifled by political agendas.”

Critics argue that the law would restrict academic freedom and prevent necessary conversations about systemic racism. While critical race theory is a graduate-level framework for academic inquiry that examines the ways institutions perpetuate racism has been a target of restrictions on speech in educational institutions and other laws, critics of the law point out that the main topic of debates about this subject are seldom the theory.

“It opens the door for a wide range of interpretations that could be used to chill free speech and academic freedom, discouraging open and honest discussions about systemic racism in classrooms and in higher education communities,” Jett Jonelis, advocacy manager for the ACLU of South Dakota, said in a statement. “That House Bill 1012 passed shows the very need for the types of discussion our government is trying to prohibit.”

The American Association of Colleges and Universities and dozens of other academic organizations have called efforts to pass this kind of legislation “deeply troubling.”

“Suppressing or watering down discussion of ‘divisive concepts’ in educational institutions deprives students of opportunities to discuss and foster solutions to social division and injustice,” they said in a statement last year. “Legislation cannot erase ‘concepts’ or history; it can, however, diminish educators’ ability to help students address facts in an honest and open environment capable of nourishing intellectual exploration.”

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